In what may be an epic free-speech showdown in the lead-up to the next Australian election, the High Court has assented to One Nation leader Pauline Hanson’s constitutional challenge to the notorious Section 18C race discrimination laws. At issue is a lower court’s ruling that Hanson breached the Racial Discrimination Act when she told Greens Senator Mehreen Faruqi to “piss off back to Pakistan”, given how much, Hanson said, she obviously despised Australia.
Faruqi is the quintessential ‘cry-bully’, ever-ready to dish it out, but with the most fragile of glass jaws should anyone arc up back. After all, Faruqi has used parliament to pour bile on “white men”, and bellow the Hamas genocidal chant. She has also tweeted photos, subsequently deleted, standing next to placards demanding to “cleanse the world” of the Jewish state. But when she took to social media just hours after the Queen’s death, to vilify the late monarch as “the leader of a racist empire built on stolen lives, land and wealth of colonised peoples”, the Ipswich redhead wasn’t having it.
Senator Hanson, a staunch constitutional monarchist, posted in response: “Your attitude appalls (sic) and disgusts me”.
“When you immigrated to Australia you took every advantage of this country. You took citizenship, bought multiple homes, and a job in a parliament,” she wrote.
“It’s clear you’re not happy, so pack your bags and piss off back to Pakistan.”
And that is, indeed, where Faruqi hails from. So, at face value, it was a brusque invitation to return to what should apparently be a more congenial cultural clime. It was also a quintessentially Australian response. As former High Court judge Michael Kirby once said, any politician with so fragile an ego “must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas.”
But Faruqi is backed by, not just a woke NSW judiciary and their ‘I Just Reckons’, but one of the most loathed laws in Australia: section 18C of the Racial Discrimination Act. This effectively gives minorities the right to offend and insult everyone else as they see fit.
But if you are a member of a racial or ethnic minority, you can use the law to shut someone up because you claim you have been offended and insulted.
Section 18C is bad law. It should have been repealed by the federal parliament long ago as an affront to a robust and healthy democracy. Plenty of courts have pointed out that political debates are not polite afternoon teas where people recite poems by Elizabeth Barrett Browning. Why on earth, then, is Hanson muzzled from responding with political verve to a politically charged tweet by Faruqi? Sure, Hanson’s response was colourful, rude and perhaps wounding. If Faruqi wants to protect her glass jaw, she shouldn’t be dishing it out. Most Australians would say they each gave as good as they got and this should be left on X, not take centre stage in a courtroom.
Hanson’s challenge will cut to the heart of the constitutionality of this very bad law. As Hanson says:
This case has always been bigger than me and bigger than one tweet. Australians must be able to speak their minds, question their government and disagree with each other without being frightened into silence […] That freedom is under attack.
The full bench of the High Court, in a display of uncharacteristic punctuality for the legal fraternity, is slated to weigh the merits of this collision between political pugilism and the censorious reach of the state in the first half of 2027. Senator Hanson remains characteristically defiant, asserting:
I look forward to putting our arguments to the Court about freedom of speech and the constitutional protection of political communication.
Her opponent, Senator Faruqi, ever the drama queen of the Upper House, offered the retort, “Bring it on.” It appears she imagines herself the Joan of Arc of the keffiyeh’n’quinoa set, rather than a well-remunerated politician with a penchant for playing the victim whenever the heat in the kitchen becomes too intense.
Meanwhile, Michaelia Cash, acting as the sensible voice from the coalition benches, noted that:
High Court is the appropriate place for the constitutional arguments raised in this case to be determined. Australians should be protected from racial vilification. They should also be able to engage in robust political debate. Getting that balance right matters in a free democracy.
One wishes Ms Cash luck with the “balance”. It’s akin to trying to balance a house of cards in a cyclone: Section 18C is fundamentally antithetical to robust debate.
Constitutional scholars, too, are sensing the rot. Professor Emerita Anne Twomey, a constitutional authority not given to histrionics, has pointed out the sheer, muddy incoherence of the lower court’s reasoning. She noted in an August video that the full Federal Court’s decision was “contradictory” and arguably failed to align with recent High Court precedent.
The courtroom awaits. The rest of us can only watch as freedom of speech is placed under the microscope to see if it survives the autopsy.
